Date: 19990812
Docket: IMM-4195-98
Ottawa, Ontario, the 12th day of August 1999
Present: The Honourable Mr. Justice Pinard
BETWEEN:
KAMEL DADI
APPLICANT
- and -
THE MINISTER
RESPONDENT
ORDER
The application for judicial review of the Convention Refugee Determination Division decision dated July 14, 1998, determining that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990812
Docket: IMM-4195-98
BETWEEN:
KAMEL DADI
APPLICANT
- and -
THE MINISTER
RESPONDENT
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a Convention Refugee Determination Division decision dated July 14, 1998, determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The Refugee Division rejected the applicant"s claim owing to his lack of credibility, particularly with respect to:
| - his allegations that the Groupe islamique armé [Armed Islamic Group] (the GIA) had threatened to kill him and burn down his shop if he did not pay up; when the panel asked him why his shop still had not been burned down in Algeria, he stated that people in the GIA had no desire to take revenge on a shop; however, the Refugee Division stated in its decision that in fact, according to the documentary evidence, GIA members do burn down the homes and shops of people who do not meet their demands; |
| - the medical certificate he filed in evidence, in view of the inconsistencies in his answers in that regard; |
| - the photo on his medical certificate, in view of his shifting testimony throughout the hearing; |
| - his real reasons for leaving Algeria: in the panel"s view, the applicant wanted to leave his country on account of discussions he apparently had with his sailor friend, rather than for the reasons put forward; |
| - his failure to take advantage of the opportunity to claim refugee status in the United States. |
[3] It is well known that in the area of credibility and weighing the facts, it is not for this Court to substitute its opinion for that of the Refugee Division where the claimant has failed to show that the panel based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[4] In this case, on reviewing the evidence I am unable to find that the decision of the Refugee Division, which is a specialized tribunal, contains such an error or defect.
[5] The applicant argues that the Refugee Division breached the rules of natural justice by hearing him without his lawyer. In this regard, it is important to note that the hearing before the Refugee Division had originally been scheduled for April 17, 1998; however, the panel granted an adjournment at that time, in view of the applicant"s change of counsel. To accommodate this new lawyer, a new hearing was set for May 6, 1998. Yet on that day, the applicant appeared alone, so the panel gave him half an hour to try to contact his lawyer. The applicant apparently then telephoned his lawyer"s office, and the secretary told him to proceed alone if his lawyer did not appear before the panel within 15 minutes. Some 40 minutes later, the applicant agreed to proceed without counsel.
[6] The right to counsel is set out in section 30 and subsection 69(1) of the Immigration Act:
| 30. Every person with respect to whom an inquiry is to be held shall be informed of the person"s right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person"s own expense. 69. (1) In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person"s own expense, be represented by a barrister or solicitor or other counsel. |
30. L"intéressé doit être informé qu"il a le droit de se faire représenter par un avocat ou autre conseiller et se voir accorder la possibilité de le choisir, à ses frais. 69. (1) Dans le cadre de toute affaire dont connaît la section du statut, le ministre peut se faire représenter par un avocat ou un mandataire et l"intéressé, à ses frais, par un avocat ou autre conseil. |
[7] However, the case law states that in general, this right to counsel is not absolute. In Afrane v. M.E.I. (1993), 64 F.T.R. 1, at page 6, Mr. Justice Rothstein wrote:
| I will take this opportunity to observe that the right to be represented by counsel is not an absolute right. It is predicated on parties and counsel acting reasonably in all circumstances. . . . |
[8] In Pilnitz v. M.C.I. (1997), 130 F.T.R. 105, at page 107, Madam Justice Tremblay-Lamer also wrote:
| The cases hold, of course, that a person is entitled to choose his or her counsel. However, this choice is not unlimited. A person must choose an attorney who is able to appear within the time limits laid down by the court or tribunal that has jurisdiction [Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849; 21 N.R. 91 (F.C.A.)]. |
| Both the applicant and his counsel were aware of the date of the hearing and could not assume that the Refugee Division would grant an adjournment. In the circumstances, I am unable to find any breach of the right to counsel. |
[9] In his book Judicial Review of Administrative Action in Canada,1 Mr. Justice Evans said the following with respect to the right to counsel:
| Although representation by counsel of a person"s choice is an important aspect of the right to procedural fairness in many administrative proceedings, . . . it will not entitle a party to unlimited adjournments in order to retain counsel . . . or to accommodate counsel"s schedule. . . . Nonetheless, in many instances the refusal of an adjournment to enable counsel to be retained, and to be given adequate time to prepare for the hearing, has been held to be a breach of the duty of fairness. . . . |
[10] In the circumstances of this case, on April 17, 1998, the panel granted the applicant an adjournment of his case until May 6, 1998, so that his new lawyer could prepare; the panel also delayed the start of the hearing of May 6, 1998, so that the applicant could contact his lawyer who had not appeared; after a 40-minute wait, during which the applicant did reach his lawyer"s secretary and was told to go proceed without him if he did not show up within 15 minutes, the panel finally asked him if he agreed to have his case proceed without his lawyer, which he did without hesitation. Under all these circumstances and having regard to the above statutory provisions, case law and authorities, I am of the opinion that the applicant"who was found not credible"was not denied natural justice or procedural fairness. I therefore see nothing procedural in this case, in which the applicant was given a full hearing and did not establish any prejudice, to warrant this Court"s intervention.
[11] For all these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 12, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4195-98
STYLE OF CAUSE: KAMEL DADI
v.
THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 22, 1999
REASONS FOR ORDER OF PINARD J.
DATED AUGUST 12, 1999
APPEARANCES:
ÉVELINE FISET FOR THE APPLICANT
CAROLINE DOYON FOR THE RESPONDENT
SOLICITORS OF RECORD:
ÉVELINE FISET FOR THE APPLICANT
CAROLINE DOYON
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, Toronto, Canvasback Publishing, 1998 at page 9-84, paragraph 9:9340.